Law in Contemporary Society

A Hopeful View of Individual Action
(As Effective Despite Sometimes Going on Autopilot)

In which I try to flesh out what it might mean to harness social forces and be a "fox" like F.D.R. or Clinton, and in which I argue that the script metaphor for social forces is too limited because it describes a mere special case of taking action on the basis of rules of thumb that happen to be poorly suited to a situation.

Although we do much of what we do without rationally choosing, this is because we face so many potential choices that we usually must resort to rules of thumb (heuristics).

Consider a possible state of things:

  1. People sometimes do give substantial consideration to alternative actions and then act on the basis of non-fallacious reasoning about which will probably produce better results (i.e., people can choose rationally, at least in this limited sense).

  1. The vast majority of alternative actions any person faces will go without rational consideration because the brain can only consider so much at once.

  1. Some of the potential choices that aren't given substantial consideration will be considered summarily and acted on heuristically (i.e., with a rule of thumb), and the rest will simply be ignored. You might imagine a spectrum, with defaulting (no consideration) at the start, cursory choice using a heuristic further along, and substantial consideration with rational choice even further along.

  1. Any particular potential choice can be subjected to any of these amounts of consideration before action.

For example, I could decide to read property before torts for the considered reason that I will retain more when I'm fresh and I'm more likely to be called on in class for that subject (since I was called on recently in torts). While I think about that, I will forgo considering whether to start some rice cooking for dinner (about which I’ll probably default—I won’t consider it and won’t start the rice) and whether to check my e-mail (which I’ll hopefully dismiss summarily using the heuristic that when I’m getting ready to do schoolwork other tasks are not as important, but without thinking through the underlying reasons for this). I could, of course, instead consider thoroughly any of a great many other things—I could give great thought to what to wear the next day, for example. Such is life.

Heuristics, which allow us to function in everyday life without being paralyzed by thought, can be utilized by those who deliberately tailor their behavior to invoke common heuristics in others—this is what “foxes” in Arnold’s sense, salesmen, and conmen do to nudge social forces.

Deference to heuristics is what conmen and salesmen rely on, but such scripts exploit only one particular kind of heuristic—that a good deal is often present when the indicators Left catalogs are present and the warning signs are absent. There are many other exploitable heuristics.

For example, L.B.J. was famous for the Johnson Treatment, utilizing the rule of thumb that deferring to the demands of an imposing physical presence is likely to be prudent.

As another example, a man can be convinced to find a woman more attractive if she introduces herself right after he has crossed an unstable bridge, a study shows. Adrenaline is present while she is present, and he heuristically imputes this excitement to her.

As a further example, consider the rhetorical device of acknowledging an unfavorable point in a dependent clause buried in a long sentence to blunt its impact (e.g., “Second, although my client was observed holding the bloody knife and laughing, notice that, as testified to by multiple witnesses, ....”). This relies on the rule of thumb that something so situated is generally not of central importance.

In each of these situations, the heuristic need not control and instead the matter can be subjected to more substantial consideration, letting one snap out of it, as it were. For example, “Wait. Doing what he suggests would indeed make sense if the facts he asserts are true, but I really don’t have any solid basis for believing his factual assertions.” Or, "Sure he's looming over me, but we're not cavemen here and this doesn't mean he's going to prevail." Or, "Wait. I felt excited before the woman introduced herself." Or, "Oh! The author gives far too little prominence to this point that in fact undercuts his entire argument."

Why is this hopeful? It suggests that, where an organization has taken on a life of its own in a way that upon consideration is not beneficial, a “fox” can expose the faulty heuristics at play and secure a different outcome.

Carrying the script idea too far—indentifying it with the situation, instead of digging for the heuristics that the script relies on—can easily result in a sort of fatalistic cynicism, or at least muddle thinking about what sort of departure can be achieved.

Joseph’s Robinson does not resign himself to his apparent role in the game and negotiate a sentence within the range suggested by the charges brought against his Serbian-Fujianese client. And he does not merely break from the script and refuse stubbornly to play along, as someone who felt the script was out of his control might. Instead, he discerns the heuristics at play—acquiescing to charges selected by a prosecutor, assuming upstanding behavior by a victim, etc.—and subjects these factors to actual consideration, choosing to leverage bad publicity that he realizes he can create (and thereby securing his client a more fair outcome).

Staying on script can of course often be beneficial, if the particular heuristics are conducive to a beneficial outcome. But where a script is wrong and the system is off track, it’s because of some assumption that in the instant case isn’t applicable—and that can be identified and subjected to actual consideration. Exposing the faulty heuristic is an option available to “foxes” who notice that heuristics are indeed what underlie the script.

In conclusion: the conception of action laid out herein is hypothetical but is not particularly unusual.

It is not my purpose to prove the truth of my assumptions about the role of heuristics, although I suspect there is some truth to them. I intend these assumptions primarily to demonstrate the possibility of reconciling predictability with choice. Moreover, the basic idea—general rules, in-built or learned, that are strongly guiding but can be deliberately overridden—sounds strongly in conventional crowd psychology. For example, it can be analogized to Jung’s collective unconscious or directly to Freud’s super-ego, each of which exerts influence on one’s actions in a well-defined way but each of which is potentially subject to rational overriding by the self or the ego, respectively.

  • Your responses to my comments aren't responsive. Moving from the roots of habitual action within the individual to the scripts of social life requires more consideration than you give in the first draft, and the wild analogies offered in the new conclusion, which are themselves inconsistent, provide no help. I still like the essay, and it still has a significant problem that can't be fixed by hand-waving.


Webs Webs

r5 - 08 Jan 2010 - 21:35:56 - IanSullivan
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